Contractors, subs, and suppliers of labor, materials, machinery or other necessary supplies or equipment to owner, contractor or sub. Architects, surveyors, engineers and landscape architects also have lien rights. Selling materials to the owner of the contracting company in his or her individual capacity, rather than to the contracting corporation, will not establish lien rights. [38-2-1 through 38-2-6; Badger Lumber Co., Inc. v. Redd, 583 S.E.2d 76, 213 W.Va. 453 (2003)]
1. Who May Have A Lien?
Private:
Public:
Furnishers of labors, materials, machinery and equipment to contractor or first-tier sub. Suppliers to suppliers are not covered. Labor performed by a material supplier is not covered. A claimant may be deemed a subcontractor even if it performs its work offsite. [38-2-39; Preussag Intern. Steel Corp. v. March-Westin Co., 655 S.E.2d 494 (W.Va. 2007)]
2. What Is The Lien Against?
Private:
Building and owner’s interest in land on which building is situated. [38-2-1]
Public:
Contractor’s payment bond. [38-2-39]
3. Who Must Give The Preliminary Notice?
Private:
Any supplier of labor or materials to contractor or sub may give preliminary notice. If given, claimant need not give owner account and notice within 60 days after last delivery, unless owner demands in writing that claimant give that final notice to owner. [NOTE that this notice refers to the time when the final notice was given to the owner within 60 days of final delivery. That is no longer the case, but this statute has not been changed, so it is recommended that it not be viewed as a way to avoid giving the final notice discussed below.] [38-2-20]
Public:
A preliminary notice is not required.
4. To Whom Is The Preliminary Notice Given?
Private:
To the owner. [38-2-20]
Public:
Not applicable.
5. When Must Preliminary Notice Be Given?
Private:
Before furnishing any labor or materials. Statute does not specify whether notice needs to be sent or received before commencing, thus recommend that Owner timely receives it. [38-2-20]
Public:
Not applicable.
6. Contents of Preliminary Notice.
Private:
Statement that, if claimant is not paid by person employing claimant, then claimant will look to owner for payment. [38-2-20]
Public:
Not applicable.
7. How Must Preliminary Notice Be Given?
Private:
No specific provision. Personal service or certified or registered mail recommended. Actual receipt is necessary for this notice to be effective. [38-2-20]
Public:
Not applicable.
8. Who Must Give Interim Notice?
Private:
An interim notice is not required.
Public:
An interim notice is not required.
9. Who Must Give Final Notice (Notice of Claim)?
Private:
All claimants. The general contractor and those who supply labor or materials directly to the owner need only give the notice to the Clerk of the County Court. All others must give the notice to owner, and the Clerk of the County Commission. [38-2-7 through 38-2-12]
Public:
A final notice is not required.
10. To Whom Is Final Notice Given?
Private:
-All those contracting with the owner, and all laborers who work for a corporation or the corporation’s general contractor or subcontractor, must give notice to the clerk of the county court where property is located. All those supplying someone other than the owner are to give their notice to the county commission. [32-2-8 through 32-2-13]
-All claimants who supply someone other than the owner must give a different notice to owner or owner’s agent. [38-2-8 through 38-2-13, 38-2-20, 38-2-31, 38-2-32; Schor at 49.03[B]]
Public:
Not applicable.
11. When Is Final Notice Given?
Private:
Recorded and received within 100 days of the claimant’s last delivery or completion of claimant’s contract. If the due date is a holiday, the notice is due BEFORE that date. [38-2-7, 38-2-8, 38-2-9, 38-2-11, 38-2-13]
Note that, for a laborer working for a corporation, the deadline to file the notice is 90 days after last working on the project. [38-2-32]
Public:
Not applicable.
12. How Is Final Notice Given?
Private:
-Filed with clerk of the county commission or county court. [38-2-9, 38-2-10]
-Personal service on owner, or service by any of the methods provided by law for the service of a legal notice or summons, or publication and posting if owner cannot be found or lives out of state. [38-2-10, 38-2-15]
Public:
Not applicable.
13. Contents of Final Notice
Private:
NOTE that everyone must give the notice to the clerk of the county court or county commission, but only those not contracting directly with the owner need to give the notice to the owner. Also, note that these two notices are different. NOTE ALSO that a lien may be limited to the amount owed to the contractor by the owner where the property is either an existing single-family dwelling, a residence being constructed by the owner to become the owner’s primary residence, or the property is a single-family owner-occupied dwelling. (Specifically, in those situations it is an affirmative defense that the owner owes less than is sought.) [38-2-21]
Clerk of the county court or county commission:
[38-2-8] Note that while the material supplier’s and laborer’s notices to the owner require an itemization of the materials or work, including prices, the notice that is filed with the county clerk or commission does not need to include that information. Note also that neither the statute nor the case law indicates whether anyone other than the claimant may sign the Notice. [38-2-11]
To the Owner:
-Where claimant is a sub. Note that neither the statute nor the case law indicates whether anyone other than the claimant may sign the Notice. [38-2-9]
-Where claimant supplies general or sub: Note that while the material supplier’s notice to the owner requires an itemization of the materials, including prices, the notice that is filed with the county clerk or commission does not need to include that information. Note also that neither the statute nor the case law indicates whether anyone other than the claimant may sign the Notice. [38-2-11]
-Where claimant is laborer working for general or sub: Note that while the laborer’s notice to the owner requires an itemization of the work, presumably including the wage rate, the notice that is filed with the county clerk or commission does not need to include that information. Note also that neither the statute nor the case law indicates whether anyone other than the claimant may sign the Notice. [38-2-13]
Public:
Not applicable.
14. Time to Start Suit / Foreclose?
Private:
Within 6 months after filing notice. NOTE that it is an affirmative defense, or an affirmative partial defense, to a lien claim that the owner is not indebted to the contractor, or is indebted to the contractor for less than the amount sought, where the property is either an existing single-family dwelling, a residence being constructed by the owner to become the owner’s primary residence, or the property is a single-family owner-occupied dwelling. (These listed dwellings do not include dwellings built by a developer or builder of multiple residences, except for the residence that is occupied as the primary residence of the developer or builder.) [38-2-34]
Public:
No specific provision. NOTE, HOWEVER, that if there is a pay-if-paid clause in the claimant’s contract, the claimant cannot pursue their customer OR the general contractor’s payment bond, if the owner hasn’t paid the contractor. Pay-if-paid clauses are not against public policy as set out in the statute. Wellington Power Corp. v. CNA Sur. Corp, 614 S.E.2d 680 (2005).
